SHIVUTE,
J:[1]The
accused was convicted of theft and sentenced to N$2000.00 (two
thousand dollars) or in default of payment to 12 (twelve) months’
imprisonment.

[2]I
raised a query with the magistrate as to how did the court satisfy
itself that the accused stole the goods as stated in the annexure?
It was alleged that the goods stolen belong to Oluno Mini Market,
Ondangwa. Why was someone from the Mini Market not called to
testify? How did the court satisfy itself about the value of the
goods stolen? The magistrate had since replied and stated that
with
hindsight I concede I erred in convicting the accused person on the
charge as read. It is irregular that the owner of Oluno
Mini Market
or a responsible person was not called. The obvious result is that
it was not proved that the property was indeed
stolen from Oluno Mini
Market as well as what the true value is. I overlooked this
essential aspect I sincerely regret this oversight.
I am of the view
that the conviction is not proper and must be set aside and the case
be ordered to commence de novo.

[3]
The State alleged that between August and September 2007 at Oluno
Mini Market in the district of Ondangwa the accused did wrongfully
and intentionally steal 12x crates of beer, 2x castle lager, 6x brown
sugar packs, 1x empty crate of beer, 10x Tassenberg liquor,
6x
Castello bottles of wine, 24x tins of fish, 45x Windhoek lager
dumpies, the property of
Oluno Mini Market, Ondangwa valued at N$5 526.45.

[4]The
State called three witnesses and I will summarise their evidence.
Ndapewa Petrus, an aunt to
the accused, testified that
the accused brought some crates of beer on diverse occasions at the
house where she was staying. He first brought
six crates of soft
drinks, twelve crates of beer, and ten bags of sugar. The accused
told the witness to look after the goods.
He first said the goods
belonged to him and later on he said he got the goods from a certain
Mini Market and warned the witness
not to disclose where he got the
goods from and threatened to stab her should she disclose it. Of
course this version was disputed
by the accused.

[5] The witness
sold some of the goods on behalf of the accused. However, when she
learned that the goods were stolen she refused
to sell the goods
further and reported the matter to the police.

[6] The second
witness called by the State was Nicanor Shipanga a serving prisoner
at Oluno prison. He testified that he was convicted
in connection
with this case on 21 November 2007 and was sentenced to three years
imprisonment. He further stated that he was
staying in the same
house with the accused before he was arrested. He continued to
testify that this was his case hence he pleaded
guilty to it. He is
the one who gave the goods to the accused on two occasions. The
goods included among others beer, wines and
sugar. On both occasions
he told the accused that he bought the goods as he was employed at
Ondangwa Mini Market as a packer.

[7] Johannes
Shigwedha a sergeant in the Namibian Police testified that he
recovered some goods but these goods were linked to the
accused’s
friend who is serving in this case. He did not recover anything from
the accused and that the accused was only
implicated by Nicanor
Shipanga the witness who testified previously. He interrogated the
accused but he could not recall what
the accused explained to him.

[8] On the other
hand the accused testified that he knew nothing in connection with
this matter, he did not steal, he was only arrested
because he was
staying with his friend the one who is serving a term of imprisonment
in respect of this case.

[9] It is obvious
from the above evidence that there is no sufficient evidence to
warrant the accused to be convicted or let alone
to be placed on his
defence. It follows that the State did not prove its case beyond
reasonable doubt against the accused and
the magistrate erred by
convicting the accused and the conviction cannot be allowed to stand.
It follows that the sentence also
falls away.

[10] As to the
proposition of the learned magistrate that the matter should be
referred back to the court to start de novo, this is not
possible because the accused pleaded not guilty to the charge and the
court proceeded with a trial. Therefore the
court has become functus
officio.